Conceptualizing Benefit-Sharing as the Pursuit of Equity in Addressing Global Environmental Challenges

This paper develops a conceptual framework for the analysis of benefit-sharing in light of its gradual development in international law as a basis for more detailed legal analysis (in the areas of international biodiversity, climate change, human rights, oceans, food, agriculture and land law). It teases out the inter-State, intra-State and transnational dimensions of benefit-sharing, with a view to mapping its multiple manifestations, connections among them, and their implications for pursuing equity among and within States in addressing global environmental challenges.

But why single out benefit-sharing in the above burden-and-benefit equations? 10 Mainly because benefit-sharing holds significant promise. It is an attractive commitment that --even if vague in content and timeframe --raises expectations that we may directly address perceived injustices about access, ownership and/or control of resources that are perceived not only as objects of regulation and cooperation, but also as embodiments of community interests. 11 Benefit-sharing serves to frame 12 equity issues by emphasizing the advantages (the positive outcomes or implications) of tackling global challenges so as to help motivate participation by different stakeholders. 13 As Nollkaemper has aptly explained, frames 'play an essential, though not always recognized, role in the development of international law': they 'highlight parts of reality over others... so as to promote particular evaluations and policies, and ... have distinct normative and regulatory implications.' 14 As a frame, benefit-sharing has the potential to facilitate 'convergence upon a shared cooperative agenda...[which depends on] each party's perception of the benefits it can secure from cooperation.' 15 As such, benefit-sharing is part of a more general fairness discourse towards 'getting the parties to think in a new way about the value of resources, or indeed about what constitutes a resource.' 16 These promises have been particularly prominent in the specific context of international biodiversity law, where benefit-sharing has blossomed. In that context, a plethora of hard and soft legal developments have spelt out the content of fair and equitable benefit-sharing in both the inter-and intra-State dimensions 17 on the basis of consensus reached by 194 States (virtually the whole international community with the notable exception of the United States). 18 Although (as discussed below) such developments in international biodiversity law have already exercised some influence on other international processes, their emergence and diffusion have occurred in a University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 remarkably obscure fashion. 19 Partly for this reason, they remain little-studied. As a result, the legal content, status and implications of benefit-sharing in relation to a range of global challenges have never before been fully mapped or systematically evaluated either within the area of international biodiversity law or in relation to other areas of international law where recourse to benefit-sharing has also been made (notably, the international law of the sea and international human rights law).
This gap in the scholarship is regrettable as benefit-sharing 'has the potential for both greater good and greater harm.' 20 As to the latter, benefit-sharing can be (and has already been) used as a superficial means to garner social acceptability for certain natural resource developments or regulations, and even to rubber-stamp inequitable and non-participatory outcomes that benefit 'stronger' parties (rich countries, powerful foreign investors) rather than as an instrument of equity for the vulnerable. 21 The risks of benefit-sharing include discriminating against some groups of stakeholders, allowing fairness to be defined by dominating interests, permitting the identification of benefits based on a mismatch between science and policy, 22 or contributing to frame environmental management in an inherently exploitative manner. 23 In all these cases, benefit-sharing amounts to a broken or empty promise at best.
One therefore needs to remain healthily skeptical 24 of benefit-sharing: a balanced approach is needed between understanding it merely as self-congratulatory rhetoric 25 or as a Sisyphean 26 concept that can be too easily criticized for aiming at the evermoving target of equity. A systematic and critical examination is thus called for, because as long as the discourse on benefit-sharing remains vague and incoherent this promising idea is, more often than not, simply brushed to the side. 27 There is a clear need to enhance understanding of a confusing and inherently optimistic legal 19 This is indeed a critical shortcoming, as one of the conditions of legitimacy and fairness in international law is 'textual determinacy', that is 'the ability of a text to convey a clear message, to appear transparent in the sense that one can see through the language of a law to its essential meaning. Rules which have a readily accessible meaning and which say what they expect of those who are addressed are more likely to have a real impact on conduct…The element of determinacy which affects a rule's legitimacy also has its impact on perceptions of the rule's fairness': Franck (n 4), at 30-33. 20 Simm (n 7), at 29. 21 274, where promised benefit-sharing in the form of revenue-sharing from a game reserve, job creation, relocation to fertile land and compensation were not delivered. 22 McCool (n 9), at 15. 23 This concern resonates with ethical concerns against the commodification of nature: eg, (2013) 2 Transnational Environmental Law (special issue). 24 Higgins (n 5), at 237, who calls for skepticism with regards to equity's contribution to effectively 'oiling the wheels of international law.' 25 I am grateful to Euan McDonald for this comment. 26 As other efforts related to global justice, benefit-sharing may be a 'Sisyphean process that is intrinsically fragile and fraught with difficulties, perpetually encountering and attempting to work through the perils …without necessarily overcoming them permanently…Yet the very existence of this possibility warrants attention, and should be better understood': F Kurasawa, The Work of Global Justice: Human Rights as Practices (CUP, 2007), at 25 27 This appears to be the conclusion reached by Simm (n 7), at 33-34 and 37-38.
University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 phenomenon, with a view to assessing whether, when and why it leads to useful results 28 and when and why it does not. To that end, it appears necessary to analyze the growing international legal practice on benefit-sharing with a view to empirically identifying its contours, conceptualizing it, and questioning its role. Only then will it be possible to formulate concrete recommendations for ongoing international lawand policy-making processes, and to contribute to relevant theoretical debates, 29 including that on global environmental justice. 30 This paper is a first step in a long research journey in that direction. It develops a conceptual framework for the analysis of benefit-sharing in light of its gradual development in international law as a basis for more detailed legal analysis (in the areas of international biodiversity, climate change, human rights, oceans, food, agriculture and land law). 31 While the proposed analysis takes international law as its starting point and as a fundamental area for investigation, it does not assume, however, that the legal concept of benefit-sharing necessarily originates in international law or that the research should stop at the international level. 32 The proposed conceptual framework teases out the inter-State, intra-State and transnational dimensions of benefit-sharing, with a view to identifying the multiple directions of this enquiry, possible connections among them, and their implications for evaluating the theoretical and practical worth of benefit-sharing in pursuing equity among and within States in addressing global environmental challenges.

The Phenomenology of Benefit-sharing
The likely 33 first appearances of benefit-sharing are linked to international human rights law: the 1946 Universal Declaration of Human Rights recognized everyone's 28 ...'there is no correct formula or approach, only more or less useful ones' when facing 'questions involving management of the environment [that] are challenging, nearly always impossible to find universal consensus on how they are framed, and never completely resolved': McCool (n 9), at 3 (emphasis added). 29 Similarly to the approach put forward by E Tourme-Jouannet, What is a Fair International Society? International Law between Development and Recognition (Hart, 2013), at 3. 30 Much still remains to be understood in the relatively recent debate on global environmental justice from a legal perspective: J Ebbeson, "Introduction: Dimensions of Justice in Environmental Law" in Ebbeson and Okowa (n 1) 1, at 35; also R Falk, 'The Second Cycle of Ecological Urgency: An Environmental Justice Perspective' in Ebbeson and Okowa (n 1) 39, at 42. With specific regard to benefit-sharing, it has been noted that 'Further confusing social discourse is a plethora of scientific activists and policy literature [on benefit-sharing] that … use foundational concepts (such as equity) vaguely, and muddies important references between diverse forms of social justice.' McCool (n 9), at 3. 31  . The law of the sea dimensions will be developed at a successive stage of the BENELEX project. 32 Parks and Morgera (n 12). 33 There currently exists no comprehensive historic study of the evolution of benefit-sharing in international law, to the best knowledge of the author, and the BENELEX team is still working on a full mapping of its occurrences in international (hard and soft) legal instruments. Note also that in this type of research, the mapping stage may be 'ever-shifting': N Walker, Intimations of Global Law (CUP, forthcoming 2014), at 142-143.
University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 right to 'share in scientific advancement and its benefits;' 34 and the 1986 UN Declaration on the Right to Development recognized States' duty to ensure the 'active, free and meaningful participation in …the fair distribution of the benefits resulting' from national development for their entire population and all individuals. 35 Another prominent, early example is the 1982 UN Convention on the Law of the Sea (UNCLOS), 36 which created complex international machinery for the 'equitable sharing of financial and other economic benefits derived from' mining activities in the deep seabed ('the Area' 37 ).
These references emerged in the context of the New International Economic Order (NIEO) -developing countries' attempt at radically restructuring the global economic system by prioritizing the objective of development as part of the process of decolonization. 38 The NIEO developed the concept of national sovereignty over natural resources to support the self-determination of States to decide their economic development, and a human right to development to support the self-determination of peoples to decide about the economic, social and cultural aspects of human development. 39 In both cases, it called for international cooperation on the basis of need. 40 To that end, the NIEO implied 'changes in legal techniques, since the established techniques have shown that they frequently serve only to perpetrate economic domination by a minority of States and make the possibility of transformations remote.' 41 While the NIEO has formally disappeared from the international agenda, the discourse on 'equitable globalization' and the international agenda on sustainable development incorporated in Agenda 21 and the Millennium Development Goals can all be seen as 'direct reminders' of its call for equity 42 and a rights-based approach to development. 43 In some ways, the NIEO may even have been turned into a general approach to international law, or at least to international environmental law: it entails substantial adjustments made through legal corrections based both on moral and practical exigencies of solidarity and cooperation including development aid. 44 And it has been enriched by recognition of cultural diversity (of 34 45 The resulting effect of combining legal rules/practices in terms of development and recognition is, at the inter-State level, rules that aim to ensure equity in negotiations among States for the benefit of the least favored countries, and at the intra-State level, the protection of rights of marginalized individuals and communities over natural resources to respect their cultural identity and protect their economic resources and livelihoods. 46 As a result, the sovereignty of States over natural resources is no longer just a set of rights to be exploited to the exclusion of others, but has been progressively qualified by duties and responsibilities towards other States and communities, and redefined as a commitment to cooperate for the good of the international community at large. 47 Against this background, a connection between benefit-sharing and the use of natural resources, both among and within States, has been cemented. This is epitomized in the 1992 Convention of Biological Diversity (CBD) and developed in a series of consensus-based, soft-law decisions adopted by the CBD Parties and in the Convention's legally binding Protocol on Access and Benefit-Sharing (Nagoya Protocol), adopted in 2010. In parallel, in the area of international human rights law, attention has focused on benefit-sharing from the exploitation of the traditional lands and natural resources of indigenous peoples. 48 As a result of these developments, benefit-sharing is now surfacing in a variety of international legal developments in the areas of water, 49 land and food, 50 and corporate accountability, 51 with little reflection on possible linkages and cross-fertilization.
This evolution may arguably be also explained by a more recent rationale for benefitsharing than NIEO: the increasingly recognized need for a proper appreciation of ecosystems' intrinsic values and their tangible or intangible benefits to humans 52 in meeting the food, health, and other needs of the world's growing population 53 -in Scholtz 54 This notion has facilitated the consideration of environmental challenges within the framework of the UN peoplecentered approach to global development and security. 55 The international community has gradually 56 espoused the view that without appropriate and explicit accounting of the multiple links between biodiversity and human development, other development objectives that conflict with biodiversity protection will continue to take priority. 57 On the one hand, the concept of ecosystem services intends to convey that applying economic thinking 58 to the use of biodiversity could help to clarify why prosperity and poverty reduction depend on maintaining the flow of benefits from ecosystems and why successful environmental protection needs to be grounded in sound economics. 59 On the other hand, this understanding has been interpreted as encouraging a greater use of economic and market-based instruments in the management of ecosystem services, where enabling conditions exist. 60  proponents of ecosystem services, however, openly acknowledge the limitations of monetary valuation particularly when biodiversity values are generally recognized and accepted socially and culturally, 62 and have rather emphasized valuation in a broad sense in order to clearly address the drawbacks and limitations of economics as a means to achieving human well-being.' 63 Accordingly, the international discourse on ecosystem services has also served to link environmental protection and poverty eradication, and to underscore the need for rights-based strategies to prevent biodiversity loss and its negative impacts on the vulnerable. 64 In addition to this emphasis on vulnerability (a modernized notion of need underlying the NIEO), the discourse of ecosystem services serves to draw attention to (largely unaccounted) merit of ecosystem service providers in contributing to global human well-being. 65 The interplay and tensions between the economic and non-economic dimensions of ecosystem services are clearly reflected in the concept of benefit-sharing as the sharing not only economic, but also socio-cultural and environmental benefits arising from biodiversity conservation and sustainable use. And the influence that the notion of ecosystem services has had across the board of multilateral environmental agreements may thus arguably explain the recent spread of benefit-sharing as a reward for ecosystem stewards in areas beyond international biodiversity law. 66 No academic study to date, however, has attempted to develop a comprehensive and systematic interpretation of benefit-sharing across different international regimes. This may be regarded, on the one hand, as the result of the fragmentation of relevant international efforts, and on the other hand, as the result of limited scholarly reflection on the overall scope of benefit-sharing and the broad implications of its ubiquity within and across international environmental regimes. The question of whether there is just one concept of benefit-sharing or many has thus remained unanswered. 67 To answer this question, it appears indispensible to specifically identify blindspots in the current scholarship against a preliminary phenomenology of benefit-sharing. For the purposes of conceptual clarity, a distinction between the inter-State, intra-State and transnational dimensions of benefit-sharing is proposed in the following sections. Different articulations of benefit-sharing in its inter-State dimension co-exist in current international law. They represent different stages of development of this legal phenomenon. In addition, benefit-sharing appears to be adapting to the different statuses of different natural resources under international law, and therefore to be able to operate in the context of different limitations to the rights of States to explore these resources. 68

Inter-State benefit-sharing
As anticipated, one of the earliest and still most complex formulations of benefitsharing can be found in the law of the sea, whereby a unique regime internationalizes the ownership of the mineral resources of the deep seabed by subordinating exploration by any State to the authority of collective decision-making under an international body that directly manages these resources. 69 In this context, benefitsharing is one of the key components of the principle of common heritage of mankind.
The principle of common heritage has not been defined, but is characterized by a series of elements. Namely, it provides that: resources cannot be appropriated to the exclusive sovereignty of States, they must be conserved and exploited for the benefit of mankind, without discrimination and for peaceful purposes, and they are subjected to a unique international institution. 70 The latter embodies a multilateral shared management 71 and benefit-sharing machinery that provides for all States to share rewards, even if they are unable to participate in the actual process of the extraction of natural resources. 72 The equity rationale for such machinery was to redress the injustice deriving from 'a resource that could …in principle be exploited by anyone' but that could effectively be accessed only by a few, high-tech States. 73 Although the articulation of benefit-sharing as part of the common heritage principle is one of the earliest, it has not yet been implemented. UNCLOS itself only stipulates that benefitsharing must be equitable and non-discriminatory, 74 but leaves the development of precise rules and procedures, as well as specific decisions on the actual allocation of benefits, to the International Seabed Authority. 75 Due to the fact that activities in the deep seabed have not yet reached the stage of exploitation of resources, the Authority has not yet elaborated on benefit-sharing. 76 The principle of common heritage has not been applied in other international instruments after UNCLOS. 77 76 At present, the Authority has only developed rules on prospecting and exploration, and begun its consideration of rules on exploitation (www.isa.org.jm/en/mcode). See, however, preliminary discussion on the latter, including on benefit-sharing, in 'Towards the development of a regulatory framework for polymetallic nodule exploitation in the Area' (2013) UN Doc ISBA/19/C/5. 77 See, however, reference to this principle in the context of international developments related to agriculture (Tsioumani (n 31)). Otherwise, the only exception, that predates UNCLOS, is Article 11(7) of the 'functionally inoperative' 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies however, developing countries are proposing to extend the notion of common heritage to living resources -namely, marine genetic resources in areas beyond national jurisdiction. Interestingly, while developed countries oppose any extension of the principle (and presumably the institutional framework) of common heritage, they appear open to discuss an application of benefit-sharing outside of that context. 79 These negotiating positions contrast with the perception that benefit-sharing has been the most controversial element of common heritage, and as such responsible for the very cautious use of the common heritage principle in international law. 80 In effect, UNCLOS already includes another articulation of benefit-sharing that operates outside of the common heritage regime: 81 it mandates States to share, through the multilateral benefit-sharing mechanism of the Area, revenues deriving from mining activities in areas under national jurisdiction, 82 as opposed to global commons. These, and successive legal developments discussed below, suggest that benefit-sharing is an autonomous concept that is capable of operating beyond the framework of common heritage and fitting into different international legal regimes for natural resources. 83 An articulation of benefit-sharing in the context of international biodiversity law applies in a regime of exchange as a counterpart to States' access to genetic resources contractual devices, 90 without providing any substantive criteria in that regard either at the stage of the regulation of such contractual negotiations in domestic law or their enforcement through international cooperation. 91 Neither is there a mechanism under the Nagoya Protocol to assess the extent to which benefit-sharing is indeed fair and equitable in the context of specific ABS transactions. 92 As modest experience on fair bilateral ABS deals has already been accrued, 93 it should be emphasized that State Parties have a due diligence obligation to limit and monitor private parties' contractual freedom in order to achieve fair and equitable benefit-sharing in the light of the objective of the Protocol. 94 Also a regime of exchange, 95 the International Treaty on Plant Genetic Resources for Food and Agriculture embodies the most sophisticated elaboration of benefit-sharing as a multilateral fund which allocates monetary and non-monetary benefits derived from facilitated access to plant genetic resources for food and agriculture that are included in the Treaty's Multilateral System (such as rice, potato and maize). Despite the fact that this international machinery for benefit-sharing has been in operation since 2008, however, monetary benefits have not yet materialised. 96 As a result, Parties to the Treaty have recently decided to establish an intersessional process tasked to develop a range of measures that will increase payments and contributions to the benefit-sharing fund in a sustainable and predictable long-term manner. 97 Only a few of the international regimes discussed in this section, however, clearly spell out what benefits are to be shared. Under the UNCLOS common heritage regime, the benefits are predominantly economic: profit-sharing and technology transfer, 98 although the sharing of scientific information is also expected. 99 The CBD 90 Nagoya Protocol Article 5(1-2 and 5) and 10th preambular recital. 91 The Protocol provisions concerning these contractual devices (referred to as 'mutually agreed terms' or MAT) are invariably of a procedural character; some reference to substantive guarantees only transpires in the Protocol provision supporting indigenous and local communities in securing fairness and equity when negotiating MAT (Article 12(3)(b)) and in a more timid way on capacity building for developing countries (Article 22(4)(b)). A specific reference to equity in voluntary terms can also be found in Nagoya Protocol Article 22(5)(b). 92 M Tvedt, 'Beyond Nagoya: Towards a Legally Functional System of Access and Benefit-Sharing' in S Oberthür and K Rosendal (eds), Global Governance of Genetic Resources: Access and Benefit Sharing After the Nagoya Protocol (Routledge, 2013) 158, which confirms the concern already exposed by Francioni (n 6) para 25. 93  points to funding and technology transfers, as well as to the sharing of biotechnology. 100 According to the Nagoya Protocol, which contains the most elaborate list of benefits to be shared in its Annex, non-monetary benefits include the sharing of research and development results, collaboration in scientific research and development, participation in product development, admittance to ex situ facilities and databases, 101 as well as capacity building and training. 102 All these benefits are noteworthy in that they may contribute to long-term cooperative relations among parties. In addition, non-monetary benefits may be in-kind contributions to conservation efforts, 103 food and livelihoods security benefits, and other contributions to the local economy. 104 In turn, monetary benefits include joint ventures with foreign researchers and joint ownership of relevant intellectual property rights (IPR), 105 profits reaching the provider country in the form of access fees, up-front or milestone payments, royalties and license fees, 106 but also financial resources to contribute to conservation efforts (such as special fees to be paid to conservation trust funds). 107 Parties to the International Treaty on Plant Genetic Resources for Food and Agriculture have notably refined monetary benefits arising from the commercialization of agricultural varieties development even further by devising a system of standard payments by the users of genetic material accessed from the Multilateral System according to standard contractual terms, adopted multilaterally. 108 Overall, it remains to be seen whether the benefits identified so far by international legal instruments can be combined in an exhaustive list or whether the use of benefitsharing under different regimes may lead to the identification of other benefits to be shared.
As of yet, a definitive, comprehensive typology of benefits remains to be delineated.
Although the existing models of inter-State benefit-sharing are each far from fully or successfully operational, the concept of benefit-sharing appears to be expanding to other areas of international environmental law, at least through interpretation. 109  is the case, for instance, of the international law on shared natural resources that do not fall wholly within the exclusive control of any one State, but rather entail the exercise of shared rights by a group of States in geographical contiguity. 110 In particular, benefit-sharing is emerging in the context of the international regulation of shared watercourses, 111 where national sovereignty is constrained by international procedural rules aimed at guaranteeing the consideration of other States' freshwater needs. In this context, benefit-sharing appears to challenge the traditional concern of international law with an equitable use of a shared resource, with a view to going beyond 'purely volumetric allocation of water.' 112 Thus, the role of benefit-sharing may also, arguably, be that of factoring into the equity rationale for international cooperation the economic, social, cultural and environmental benefits arising from the sustainable and equitable use of freshwater that are critical for poverty reduction and conflict prevention.
In the international climate change regime, practitioners and scholars have been reflecting on whether benefit-sharing may represent a useful concept to address equity concerns emerged in the Clean Development Mechanism and REDD-plus. 113 In this case benefit-sharing would be utilized in the context of inter-State cooperation in delivering a global benefit arising from environmental protection efforts that remain under each State's sovereignty, but have become the 'legitimate object of international regulation and supervision' (common concern of mankind). 114 Equity is thus being pursued through the differentiation of international obligations of developed and developing States 115 in order to 'reconcil[e] the tensions between the and water resource use can be sustained and shared equitably, while still protecting vital ecosystems and their services' (emphasis added); and UNECE 'Policy Guidance Note on identifying, assessing and communicating the benefits of transboundary water cooperation' (draft, May 2014) para 5 reads: 'There is scope for increasing transboundary water cooperation from quantity or quality issues to a broader set of issues, and by moving from "sharing water" (i.e. allocating water resources among riparian States) to "sharing the benefits of water" (i.e. managing water resources to achieve the maximum benefit and then allocating those benefits among riparian States, including through compensation mechanisms). There is even greater scope for increasing cooperation by moving from "sharing the benefits of water" to "realizing the broader benefits of water cooperation".' 110 114 Because the object of international regulation is of universal character, requires global common action, and gives rise to a common responsibility in the international community to assist in its protection: Birnie, Boyle and Redgwell (n 47), at 128 and 131. 115 The principle supports the role of developed countries in taking the lead in addressing global environmental issues, the allocation of less burdensome obligations on developing countries, and developed countries' obligations to transfer technology and 'new and additional' financial means to developing countries, to enable them to implement international environmental obligations: E Hey, 'Common but Differentiated Responsibilities' in Wolfrum (n 6).
University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 need for universalism in taking action to combat global environmental problems and the need to be sensitive to individual countries' relevant circumstances.' 116 The latter notably encompass differences in countries' current economic abilities to address a global environmental challenge and their historical contributions to the emergence of such a challenge. This approach is embodied in the principle of common but differentiated responsibility, that has been seen as a 'test for the seriousness of efforts and willingness to cooperate' of developed countries. 117 Notwithstanding intense policy and academic debate on common but differentiated responsibility, however, this principle has as yet eschewed 'an internationally shared understanding.' 118 Against the background of this well-known debate, benefit-sharing may help to emphasize 'the need to ensure that developing countries actually benefit from mitigation activities beyond the mere financial revenues created by carbon credits .' 119 In conclusion, inter-State benefit-sharing has established itself through treaty law either as a principle (in the CBD and Nagoya Protocol) or as a sophisticated mechanism, often backed by the creation of international institutional machinery (under the law of the sea and the International Treaty), to realize equity in the relations among States concerned with the global commons or situations of exchange. Some indications exist however, that, notwithstanding its limited success so far, benefit-sharing may also be emerging in inter-State relations concerned with shared resources and matters of common concern of mankind.

Blindspots in the literature
Benefit-sharing has been almost exclusively studied in the specific areas of the law of the sea (speculatively) and biodiversity. As to the latter, legal scholarship has predominantly focused on benefit-sharing in the context of access to genetic resources and traditional knowledge (the exchange regime mentioned above that is usually referred to as 'access and benefit-sharing' or ABS), over-emphasizing intellectual property implications. 120  Intellectual property rights (IPRs) have been prominent because their (ab)use may create obstacles to access and use of resources (by privatizing previously common resources), 123 or to technology transfers, which is also a form of benefit-sharing. At the same time, IPRs can be a form of benefit-sharing, 124 and can provide a way to monitor and enforce benefit-sharing. 125 That said, there are many other forms of benefits to be shared (notably non-monetary ones), the breadth and potential of which remains to be fully explored in scholarship and practice.
The lack of systematic and in-depth comparison between disparate regulatory efforts precludes a full understanding of how benefit-sharing is developed and operates across inherently different international legal regimes. This is particularly significant as there is some evidence of cross-fertilization among these different international developments: countries participating in current debates on marine genetic resources in areas beyond national jurisdiction are debating the need to consider whether and to what extent it is possible to build upon the Nagoya Protocol and the ITPGR, or on the common heritage regime of the Area. 126 It thus remains to be established whether, how and to what extent benefit-sharing can effectively support (and crucially when it cannot) States in 'consider[ing] not only their own individual interests, but also the interests of other States, the community of States as a whole or both, when shaping their positions' 127 .
In particular, as benefit-sharing under the international biodiversity regimes entails financial assistance and technology transfer towards developing countries, 128 the question arises as to its role in other international regimes whose object is characterized as a common concern of mankind and that routinely include financial assistance and technology transfer obligations, though there may not be explicit brings back the notion of benefit-sharing. In the context, for instance, of the ongoing international effort to define 'human rights to international solidarity,' 131 reference is made to the sharing of environmental benefits and the responsibilities of the international society within a just and fair political and economic order in terms of environmental finance and technology transfer. 132 This is also the case of current efforts to define the right to development as the equitable sharing of the environmental benefits of development. 133 It is further the case of recent efforts to conceptually clarify the human right to science, which is based on the earliest appearance of benefit-sharing in international law (the Universal Declaration of Human Rights), 134 and which underlines the need for further clarification of the modalities 135 and role of benefit-sharing vis-à-vis technology transfer, 136 as well as of 129 This line of enquiry may be particularly promising, as under the CBD benefit-sharing in the form of financial and technology solidarity has only been explicitly addressed with reference to access to genetic resources (a situation of exchange), rather than more broadly with reference to the other two objectives of the Convention (conservation and sustainable use) that fit into the common concern approach: Eg, CBD technology transfer work programme, paras. 3.28 and 3.2.9. 130  the role of intellectual property vis-à-vis the diffusion of scientific research. 137 In this connection, the right to science overlaps with the right to development, 138 as well as with efforts within the international biodiversity regime for advancing biodiversityrelated scientific progress. 139 There therefore appears to be a little-studied duality of approaches to inter-State benefit-sharing (notably environmental financing and technology transfer), framing the question either in terms of multilateral environmental obligations among States or of the human rights obligations of States towards relevant individuals and communities. 140 It remains to be evaluated whether such a duplication of approaches will lead to overlapping efforts and conceptual confusion, or rather to mutually supportive efforts in interpreting inter-State obligations in light of their implications for human rights holders. As to the latter, the dual approach could serve to emphasize the binding nature and prioritize the implementation of these international environmental obligations 141 that are usually characterized as voluntary commitments by developed States. 142 In addition, the human rights approach could potentially afford individuals opportunities to claim protection in national and international law against governments 143 that do not comply with their financial and technological solidarity obligations. This would bring added value, as solidarity obligations are not usually reviewed under the compliance mechanisms established by multilateral environmental agreements. 144 Overall, the characterization of inter-State benefit-sharing under environmental treaties as human rights issues is a promising area of study for better understanding the 'radical transformation in the nature of sovereignty or sovereignty rights over natural resources' that is currently at play. 145

Intra-State benefit-sharing
that disproportionately favor educated and economically affluent individuals and regions; and to a corresponding obligation for industrialized countries to comply with their international legal obligations through provisions of direct aid, financial and material, as well as development of international collaborative models of research and development for the benefit of developing countries and their populations (ibid, para 68). 137 In that regard, the Special Rapporteur advocates the adoption of a global good approach underpinned by a minimalist approach to IP protection (ibid, para 65). Her 2015 thematic report is expected to focus on the impact of intellectual property regimes on the enjoyment of the right to science and culture: The intra-State dimension of benefit-sharing links environmental protection and respect for human rights much more explicitly than the inter-State dimension. Focusing on benefit-sharing within States specifically allows for the examination of a partial overlap (and incipient cross-fertilization) between international biodiversity law and human rights law in relation to the rights of indigenous peoples to their lands and natural resources, and to their traditional knowledge.
Four references to intra-State benefit-sharing can be found in treaty law. The 1989 ILO Convention concerning indigenous and tribal peoples contains the first: these peoples 'shall, wherever possible participate in the benefits' arising from the exploration and exploitation of natural resources pertaining to their lands, although the exact scope of this right was left undefined. 146 Ensuing developments under international human rights law have contributed to flesh out this concept only to a limited extent. In that respect it is notable that the most elaborate restatement of indigenous peoples' human rights, the UN Declaration on the Rights of Indigenous Peoples, does not make reference to benefit-sharing, although it has been argued that this notion is implicit in its provisions on indigenous peoples' rights to their lands, territories and natural resources. 147 In turn, the Convention on Biological Diversity is the second treaty in which intra-State benefit-sharing is encapsulated with specific regard to indigenous peoples' traditional knowledge. In this context, intergovernmental consensus among 194 States 148 has gradually but steadily been garnered in a series of soft-law guidelines and standards on a broader notion of intra-State benefit-sharing, also related to the customary sustainable use of biological resources. This normative work has culminated in the adoption of the third and fourth most sophisticated treaty-based expressions of intra-State benefit-sharing, limited, however, to the use of genetic resources and associated traditional knowledge: the ITPGR and the Nagoya Protocol. Given the uneven normative development of benefit-sharing in these different areas of international law, a start will be made here with the concept of intra-State benefit-sharing arising from international biodiversity law. In a second step, relevant developments in that area with those under international human rights law will be contrasted.

Intra-State benefit-sharing under international biodiversity law
Notwithstanding resistance among States to explicitly address human rights issues under the framework of the CBD, 149 a plurality of legal instruments have been adopted in that context to flesh out intra-State benefit-sharing with inputs from indigenous peoples and local community representatives. 150  traditional knowledge can be understood as the knowledge built by a group through generations living in close contact with nature, and may comprise a system of classification, empirical observation about the local environment and a system of selfmanagement that governs resource use. 157 From a legal perspective, its essential elements appear to be the link between the shared cultural identity of the communities and the land and biological resources that they traditionally occupy or use 158 and the existence of customary rules about the preservation and protection of such traditional knowledge. The key challenge is thus protecting the communal way of life that develops and maintains traditional knowledge. 159 Against this background, several consensus decisions adopted by CBD Parties have developed the notion of intra-State benefit-sharing from reliance on traditional knowledge and customary uses of natural resources of indigenous and local communities. 160 In this case, benefit-sharing addresses equity concerns deriving from colonization, mandatory assimilation, relocation and globalization that have resulted in the marginalization and erosion of communities' traditional knowledge systems, 161 as well as abuses of the IPR system involving the misappropriation of traditional knowledge. 162 While questions related to IPRs remain the most controversial with regard to intra-State benefit-sharing, 163 it is argued here that the scholarly literature, overemphasizing the relevance of IPRs in this regard, has ignored the vast array of other benefits that could be shared and that may be of even greater importance to indigenous peoples. Accordingly, benefit-sharing may concretize in the legal recognition and provision of support for community-based natural resource management, 164  environmental and socio-cultural impact assessments 165 and in natural resource management planning. 166 In all these circumstances, different equity concerns will have to be balanced: society at large will share in the benefits arising from having access to traditional knowledge, with the approval of its holders; and indigenous peoples will share in the benefits arising from the utilization of their knowledge by government, private sector or research institutions, through the enhanced protection of the rights that constitute the basis of their knowledge creation.
Benefit-sharing has also been developed into a legally binding obligation owed directly to communities in connection to a narrower understanding of traditional knowledge under the Nagoya Protocol -that is, traditional knowledge associated with genetic resources used for R&D purposes. 167 This is a novel provision and it is widely acknowledged that developed and developing countries alike will face significant challenges in implementing it. 168 In effect, CBD Parties have recently concluded that there are no international guidelines to support States' implementing efforts either with specific regard to traditional knowledge associated with genetic resources under the Nagoya Protocol or to the broader notion of traditional knowledge under the CBD, and no centralized mechanism for communities to report unlawful appropriation of their traditional knowledge exists. 169 Notwithstanding the significant hard-and soft-law developments related to traditional knowledge in international biodiversity law, therefore, more normative advances are needed to operationalize intra-State benefit-sharing: CBD Parties, therefore, recommended the elaboration of guidelines on benefit-sharing from traditional knowledge. University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 ecosystem approach. 171 CBD parties have spelt out that the ecosystem approach entails integrating adaptive management of land, water and living resources, and promoting their conservation and sustainable use in an equitable way, recognizing that human beings and their cultural diversity are an integral component of many ecosystems. 172 In that vein, the ecosystem approach calls for incentivizing the good management practices of indigenous peoples and local communities, as well as of other stakeholders that are responsible for the production and sustainable management of ecosystem functions. 173 When indigenous peoples and local communities are concerned, it may of course be futile to distinguish their ecosystem stewardship from the application of their traditional knowledge, 174 as the two are in practice inextricably linked, 175 although such a distinction may still survive from a legal viewpoint. 176 Benefit-sharing in this context combines an equity concern for those that devote their efforts to and bear the risks of the conservation and sustainable use of biodiversity, and for the larger community that benefits from conservation and sustainable use but does not pay the costs associated with them. In addition, it points to practical concerns about counterbalancing short-term gains that would derive from ecosystem degradation by creating a stake in conservation for those that more closely interact with nature, thereby aiming at ensuring compliance with environmental protection law. 177 The ecosystem approach has inspired guidance on intra-State benefit-sharing in the context of biodiversity-based tourism, 178 the creation and management of protected areas, 179 and as an area to be explored in the conduct of environmental and sociocultural impact assessments regarding natural resources traditionally owned or used 171 Principles of the Ecosystem Approach (n 52), para 9, which reads: 'The ecosystem approach seeks that the benefits derived from these functions are maintained or restored. In particular, these functions should benefit the stakeholders responsible for their production and management. This requires, inter alia: capacity-building, especially at the level of local communities managing biological diversity in ecosystems; the proper valuation of ecosystem goods and services; the removal of perverse incentives that devalue ecosystem goods and services; and, consistent with the provisions of the Convention on Biological Diversity, where appropriate, their replacement with local incentives for good management practices.' This appears to be reflected in the General Assembly Strategic Framework for 2012-2013 (UN Doc A/65/6/Rev.1), para 11(24)(b) and for 2014-2015 (UN Doc A/67/6 (prog 11)), para 11(16) (both reading: 'Particular attention will be given to equity issues (including but not limited to access and benefit-sharing and how vulnerable and disadvantaged communities could be compensated or rewarded for their ecosystem stewardship'). 172 Principles of the Ecosystem Approach (n 52), paras A.1-4. 173 Ibid, Annex, Operational Guidance 2, para 9; Refinement and elaboration of the ecosystem approach, CBD Decision VII/11 (2004) 178 See also CBD work programme on mountain biodiversity (n 166) para 1(3)(7); Guidelines on Tourism and Biodiversity (n 160) para 4(a)-(b). 179 Work programme on protected areas, CBD Decision VII/27 (2004) Annex, paras 2(1) and 2(1)(4) (while the latter refers to both benefit-and cost-sharing, the focus on benefit-sharing is clarified in CBD Decision IX/18 (2008), preamble para 5).
University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 by indigenous peoples and local communities. 180 It has also more generally influenced and modernized the concept of sustainable use of biological resources. 181 It may be argued that the ecosystem approach also underlies the Nagoya Protocol's provision whereby a benefit-sharing obligation is owed directly to indigenous and local communities as stewards of genetic resources 'held by them.' 182 Furthermore, as the ecosystem approach applies to all human interactions with nature, it provides a conduit for the integration of intra-State benefit-sharing across the board of environmental protection and management efforts, notably also under international environmental agreements that do not mention benefit-sharing as such or pay little attention to the role of indigenous peoples and local communities, such as the international climate change regime. 183 c) Common traits to intra-State benefit-sharing In the case of traditional knowledge and ecosystem stewardship, benefit-sharing under the CBD appears to be conceived as a reward. It acknowledges and recompenses traditional knowledge holders and ecosystem stewards for their positive contribution to humanity's well-being that derives from the ecosystem services they provide, maintain or restore through their conservation and sustainable use practices, and from scientific advances and innovation that build on their traditional knowledge. It thus focuses on forward-looking identification of benefits that may help to improve and consolidate the conditions under which ecosystem stewards and traditional knowledge holders develop and maintain their knowledge and practices. Benefits to be shared to this end comprise information-sharing and capacity building such as full cooperation in scientific research and technology development, education, training to identify income alternatives, or assistance in diversifying management capacities. In addition, benefit-sharing can take the form of profit-sharing that derives from commercial products including trust funds, joint ventures and licenses with preferential terms, and from the levying of appropriate fees, or through the setting-up of revenue-sharing mechanisms when the revenue generated through conservation and sustainable use activities is accrued by the State or outside investors. It may also benefit communities economically through job creation within safe and hazard-free working environments and payment for ecosystem services. 184 Furthermore, it takes the form of supporting the economic activities of indigenous peoples and local communities by: fostering local enterprises, offering direct investment opportunities, facilitating access to markets, and supporting the diversification of income-generating (economic) opportunities for small and medium-sized businesses. 185 To some extent, the rewarding function of intra-State benefit-sharing may also contribute to enhance the protection of the rights of indigenous peoples and local communities, by enhancing their participation in relevant decision-making processes and leading to the legal recognition and factual support of their customary practices. The CBD work programme on protected areas, for instance, links the goal of promoting equity and benefit-sharing with legal recognition of indigenous and local community conserved areas, by engaging communities in participatory planning and governance. 186 Along similar lines, the CBD Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity point out that local people's involvement facilitates compliance with legislation, with benefit-sharing enhancing management regimes and compensating local stakeholders for their management efforts. 187 This proactive approach underlining inter-State benefit-sharing may thus also intertwine with compensation for inevitable negative impacts on communities' livelihoods that derive from certain environmental management choices. 188

Intra-State benefit-sharing under international human rights law
International human rights bodies have occasionally engaged with the concept of intra-State benefit-sharing in the context of indigenous peoples' rights to lands, territories and natural resources traditionally owned or used by them. 189 This trend has, however, clearly increased in the last few years, 190 and notably has become prominent in two seminal pieces of regional case-law, discussed below. Benefitsharing has been invoked in relation to indigenous peoples' right to property of lands and natural resources, 191 and their right to development 192 (that is, their right to set 186 Work programme on protected areas (n 179), whose programme element 2 is tellingly titled 'Governance, participation, equity and benefit-sharing': paras 2(1)(3)-2(1)(5). 187 See Addis Ababa Principles and Guidelines (n 166) rationale to Principle 4 and operational guideline to Principle 12. 188 Ibid, Principle 12; revised work programme on forest biodiversity (n 166), Goal 2, para f, which calls for mitigating socio-economic failures that lead to decisions resulting in forest biodiversity loss through market and other incentives for the use of sustainable practices, developing alternative sustainable income generation programmes and facilitating self-sufficiency programmes of indigenous and local communities; and Guidelines on Tourism and Biodiversity (n 160), para 43, when referring to the need to provide alternative ways for communities to receive revenue from biodiversity. For a discussion of compensation in international environmental law as a balancing exercise among threats that can be considered justified as long as there is effective maintenance of environmental protection levels, see A Langlais, 'Le droit de la biodiversité a l'aune du développement durable ou l'ouverture a de nouvelles formes d'équité environnementale? L'example controversé de la compensation écologique in Michelot (n 44) 155. the establishment of environmental protection measures negatively affecting indigenous peoples' rights to such lands and resources in two significant cases decided at the regional level. 201 The normative work of the UN Special Rapporteur on Indigenous Peoples' Rights, James Anaya, has similarly been characterized by an unclear interplay between benefit-sharing and compensation, even when he put forward the argument that the two are distinct. 202 Although the point remains to be fully fleshed out, it seems that benefit-sharing adds to compensation for material and immaterial damage (with the former including environmental damage affecting indigenous peoples' subsistence and spiritual connection with their territory) 203 by also compensating for broader, historical inequities that have determined the situation in which the specific material and immaterial damage has arisen. 204 Other human rights bodies that have identified a role for benefit-sharing separate from compensation for negative impacts on indigenous peoples' rights when development projects or conservation measures are located in indigenous peoples' lands or based on their natural resources 205 did not elaborate on the point. In comparison with relevant developments under the CBD, therefore, international human rights law does not seem to have sufficiently elaborated benefit-sharing as a tool to empower indigenous peoples to be equal partners in natural resource development, environmental conservation, or research and development efforts linked to their lands, natural resources and knowledge. Rather, benefit-sharing under international human rights law has mainly remained focused on victims of the negative impacts arising from these efforts. 206 In addition and possibly linked to this gap, developments in the area of human rights, as opposed to those under the CBD, have not spelt out the types of benefits that should be shared. 207 Emphasis on backward-looking compensation may also have the disadvantage of creating the impression in the minds of regulators and the public that indigenous peoples' claims have been extinguished and no more is needed for justice to be done. 208 A possible reason for the limited attention paid to benefit-sharing under international human rights law may be the emphasis placed on the complex and still unsettled notion of free prior informed consent (FPIC). 209 Prior informed consent establishes the need to conduct consultations with indigenous peoples in good faith and in a culturally appropriate form with a view to giving indigenous people the opportunity to genuinely influence decisions affecting their rights, and make every effort to build consensus among all concerned. 210 FPIC is seen as the paramount procedural University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 guarantee for the protection of indigenous peoples' rights from encroachment by the State (or private-sector operators, as discussed below). But its outer limits remain contentious, and the question of the circumstances under which indigenous peoples can say 'no' in particular remains thorny. 211 In this connection, benefit-sharing is seen as an 'additional safeguard' to FPIC, 212 together with impact assessment, remediation and compensation. Accordingly, benefit-sharing and FPIC need to be studied as intertwined procedural guarantees. The negotiations on benefit-sharing (including the scoping of benefit-sharing options in the context of environmental and socioeconomic impact assessment, as foreseen under the CBD) 213 may contribute to culturally appropriate and effective consultations 214 to obtain FPIC. Agreement on benefit-sharing may thus precede and be a condition for the granting of PIC. At the same time, benefit-sharing will be the end-result of an FPIC process: the benefitsharing arrangements will be the concrete expression of the accord granted by indigenous peoples on the basis of their own understanding and preferences. 215 The interplay between FPIC and benefit-sharing in light of relevant developments under international human rights and biodiversity instruments clearly runs deeper than this and remains an area for further clarification. It should also be considered that in real life the mere openness to engage in discussions on potential benefit-sharing may lead to the raising of expectations and pressure on communities to give their consent. That said, it may also be the case, which once again remains to be fully studied, that benefit-sharing may be required when FPIC is not (that is, in circumstances where the impact of relevant activities is not so severe to require FPIC, but only consultation with indigenous peoples). 216 In addition, as opposed to international guidance on FPIC in relation to proposed limitations of indigenous peoples' rights to lands and natural resources (as a protection against relocation or other negative impacts deriving from development projects, conservation measures or extractive activities on indigenous peoples' lands), there are currently no international standards that are adapted to the specificities of FPIC and benefit-sharing from the use of indigenous peoples' traditional knowledge. This gap has been recognized by CBD Parties and a process to develop international guidelines not only on benefit-sharing but also on FPIC, that was initiated in that context in late 2014. 217 211 FPIC 'should not be regarded as according indigenous peoples a general "veto power" over decisions that may affect them, but rather establishing consent as the objective of consultations with indigenous peoples': Report to the HRC (n 210) para 46; and Study on extractive industries and indigenous peoples (n 202) para 30, which reads '...it must be emphasized that the consent is not a freestanding device of legitimation. The principle of [FPIC], arising as it does within a human rights framework, does not contemplate consent as simply a yes to a predetermined decision, or as a means to validate a deal that disadvantages affected indigenous peoples. When consent is given, not just freely and on an informed basis, but also on just terms that are protective of indigenous peoples rights, it will fulfil its human rights safeguard role.' 212 Rapporteur on Indigenous Peoples' Rights, Study on extractive industries and indigenous peoples (n 202) para 52 (emphasis added). 213 Akwé: Kon Guidelines (n 156) para 6(h Overall, benefit-sharing under international human rights law remains at an early stage of development. 218 Furthermore, these normative developments remain to be systematically compared and contrasted with those under the CBD. This is particularly urgent as all international development banks have already adopted a synthesis of guidance from both areas of international law into their policies that requires benefit-sharing in relation to the relocation of indigenous peoples from their lands, projects with impacts on traditional lands and natural resources, the commercial use of traditional knowledge and the use of cultural heritage, as well as providing indications on intra-community benefit-sharing. 219 And certain concerns about adherence to relevant international standards have already been voiced: for instance, the World Bank's Indigenous Peoples Policy has been criticized for falling short of requiring benefit-sharing with indigenous peoples consistently with their ownership rights, including collective ownership of lands acquired by means other than traditional or customary occupation or use. 220 An enquiry into intra-State benefit-sharing will ultimately turn to questions of sovereignty -the sovereignty of States 221 and the internal 222 sovereignty of indigenous peoples. This is due to the coexistence of indigenous peoples' self-government (through their autonomous structures that are based on customary laws), which is instrumental to their capacity to develop and maintain their distinctive cultures and lifestyles, including through their use of land and natural resources, 223  line of enquiry is thus needed to shed light on self-determination as a process seeking to develop a partnership between States and indigenous peoples. 224

Blindspots in the literature
Few legal scholars have explored the linkages between benefit-sharing and the enjoyment of indigenous peoples' right to self-determination through their unique relation with land and resources for their cultural, spiritual and livelihood needs, including the need for protection against unfair and unsustainable forms of natural resource exploitation. 225 Similarly, few legal scholars have considered linkages between benefit-sharing and the protection of indigenous peoples from unjust forms of environmental protection. 226 The incipient evidence of cross-fertilization between the CBD and human rights instruments in relation to intra-State benefit-sharing 227 has not attracted due academic attention either. The fact that benefit-sharing is so far largely overlooked in the otherwise well-established debate on human rights and the environment 228 is on the whole quite striking. 229 As a result, it remains to be ascertained whether there are tensions or mutual supportiveness between international biodiversity and human rights law in their developments of benefit-sharing, considering their different premises informed by ecosystem stewardship, on the one hand, and self-determination and ownership of natural resources, on the other. Human rights lawyers have been skeptical or even critical of perceived 'unrealistic expectations regarding the conservationist behavior of indigenous peoples [that] may have detrimental consequences for the recognition and respect of their rights.' 230 Nonetheless, from a general international law University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 perspective it is clear that the 'right to dispose of natural resources should not be interpreted as a freedom to engage in unsustainable uses of the environment as it must be understood in the context of common responsibilities for maintaining the health of our ecological systems.' 231 A combination of the two perspectives is needed, however. Conceptually, the role of benefit-sharing vis-à-vis consultation and FPIC remains to be clarified, in particular in connection with the use of prior environmental and socio-cultural impact assessment and with regard to enhanced participation for indigenous peoples in relevant decisionmaking as a result of the consultation process 232 (and therefore as a form of benefitsharing, rather than a means to achieve consensus on benefit-sharing). In addition, clarification is needed as to the role of benefit-sharing vis-à-vis compensation. This is particularly relevant in last-resort scenarios in which the pursuance of genuine objectives of public interest requires a proportionate limitation or even extinction of the rights of indigenous peoples upon their prior informed consent (to allow access to their territories by third parties, lose access to their territories and/or otherwise give up alternatives for the future development of their territories). In these cases, traditional compensation would be limited to trying to replace what has been lost with equivalent resources elsewhere -providing land that is commensurate (or better) in quality, size and value and livelihood restoration. 233 Benefit-sharing as compensation, instead, would add to this effort to minimize negative impacts a more proactive approach to maximizing any benefits arising from this scenario. It would do so by creating long-term forms of partnership that allow both for new opportunities of income generation arising from the proposed development and continued or enhanced control over the use of the lands and resources affected by the development (for instance, with indigenous peoples (co-)managing new protected areas or having minority ownership interest in an extractive operation). 234 In other words, the dividing line between compensation and benefit-sharing lies in the empowerment 235 of beneficiaries with the result that normative authority is shared with indigenous peoples on the basis of an a priori recognition of communities as equal partners in environmental protection, natural resource management and development. 236 In these University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 cases, it seems that the understanding of benefit-sharing as a mere procedural safeguard under international human rights law 237 may overlook substantive dimensions.
Attention should be also drawn to an additional dimension of benefit-sharing in the intra-State dimension: intra-community benefit-sharing. 238 This addresses an equity concern that arises from benefit-sharing itself -that is, the need to prevent disruptive or divisive effects within beneficiary communities due to inequitable distribution of benefits only to certain members of the community or adverse impacts arising from different types of benefits on communities' identities and internal governance structures. 239 This dimension appears to have received similar treatment under international human rights and biodiversity law: benefits to be shared with communities must be culturally appropriate and endogenously identified. Another significant research question at the intersection of international biodiversity and human rights law is whether and to what extent developments under the CBD and its Nagoya Protocol related to benefit-sharing have expanded the international human rights of indigenous peoples to local communities 242 -a category of unclear status in international human rights law. 243 Local communities, however, are widely seen as key ecosystem stewards and holders of traditional knowledge, 244 and a variety of human rights of general application (such as those related to subsistence 245 and culture 246 ) may be negatively affected by interferences with these communities' relations with land and natural resources. Along these lines, the ITPGR includes benefit-sharing among 'farmers' rights' 247 and recent international soft-law initiatives have expanded the beneficiaries of benefit-sharing to 'tenure right holders' (i.e. those having a formal or informal right to access land and other natural resources for the realization of their human rights to an adequate standard of living and wellbeing) 248 and small-scale fishing communities. 249  in CBD instruments to 'indigenous and local communities' 250 (rather than 'indigenous peoples and local communities') aim to restrict the rights of indigenous peoples, 251 and that the CBD subjects the protection of these rights to their compatibility with the environmental sustainability of their exercise. 252 These concerns, that are legitimate to the extent that they are confirmed in the practice of individual CBD Parties, appear legally ill-founded from a principled perspective. According to general international law, the CBD is to be interpreted and applied in light of applicable international human rights instruments, and the link between the protection of traditional knowledge and biodiversity conservation is simply a reflection of the subject-matter scope of the Convention (that is, it leaves the protection of other traditional knowledge to other instruments and processes). And even when the CBD text authorizes its Parties to depart from existing international human rights obligations, in the exceptional cases in which their exercise would cause serious damage to or threaten biological diversity, 253 this should be understood as an obligation for CBD parties to negotiate an interpretation of the CBD and other international instruments that leads to the identification of a mutually supportive solution. 254 The more appropriate questions to be asked are rather the following. Conceptually, to what extent does benefit-sharing add value in ensuring the respect of human rights when tackling environmental challenges by structuring and providing criteria for the necessary balancing of interests? And practically, under which conditions can benefitsharing be misused or abused to 'renegotiate' the human rights that are at stake or simply to put a price-tag on the limitation of these rights? 255 Both questions have great relevance, since it has been argued that under international human rights law 'there is little indication of how to appreciate the relationship between indigenous land rights and potentially competing non-indigenous (thirdparty) rights over land.' 256 In principle, benefit-sharing should be understood as a corollary to well-established and effectively protected human rights. But considering the reality of many (developed and developing) countries where natural resourcerelated rights are not settled, recognized or documented, benefit-sharing may also act as a pragmatic process to gradually create the infrastructure necessary for the full recognition, documentation and protection of human rights. The latter expectation was in effect at the basis of the community-based wildlife management experiments in Southern Africa, which were expected to formalize collective rights over natural resources and did result in both ecological recoveries and new local benefits, although only in exceptional cases did they result in genuine shifts of rights and authority over  255 The concern has been raised by Orellana (n 203) at 847. 256 Pentassuglia (n 206) at 168. natural resources to communities. 257 Among the lessons learnt that have been recently documented is that legally recognized ownership rights should be vested with locally representative institutions to ensure appropriate incentives are in place for sustainable use, 258 accompanied by sufficient forms of power and leverage to enforce and capitalize upon those rights. 259 These experiences confirm that benefit-sharing should not be conceived and implemented in isolation from the wider legal landscape, from the politics that underlie it, or from a deep understanding of the customary systems, particularly the commons, 260 within which benefit-sharing will be embedded. Finally, answering all the questions raised above on intra-State benefit-sharing systematically also appears crucial to further understanding some technicalities of the interplay between international biodiversity and human rights law that may have significant practical implications. First, considering that the CBD counts on a virtually universal membership, it would help to understand whether CBD guidelines may apply more easily across international borders than human rights processes, 261 as international human rights instruments have varying membership 262 and there are significant limitations to their extraterritorial application. 263 Second, as the monitoring of State practice under the CBD is non-existent, 264 another question that merits discussion is whether international human rights enforcement mechanisms and bodies tasked to hear and investigate complaints 265 may have the potential to contribute to cross-compliance with international standards related to benefit-sharing that have

Transnational dimensions
Distinguishing between benefit-sharing among States from benefit-sharing within States (between governments and communities) constitutes a useful and necessary starting point, as the inter-and intra-State dimensions of benefit-sharing raise differently conceived legal relations. In addition, at least in some cases (for instance, access to genetic resources) distinguishing the different dimensions of benefit-sharing provides a useful lens to connect different sources of inequity in the regulation and management of the environment among States (inter-State dimension) that trickle down to indigenous peoples and local communities (intra-State dimension).  273 Seen from a global justice perspective, aid may work as a minimal form of restitution for historical injustices, such as the extraction of natural resources without adequate compensation to local populations, or on the contrary generate and amplify status, power and information asymmetries between the party lending assistance and the one receiving it. 274 Against this background, it is worth exploring whether and to what extent benefit-sharing can play a role in the global justiceinspired efforts at making aid a form of 'substantively egalitarian North-South cooperation' on the basis of recognition of cultural pluralism, deliberation 'striving to construct zones of agreement and mutual interest'; and 'democratization of expertise and skills through the training of local communities. ' 275 In addition, the role of the private sector in relations among States (for instance, with regards to the transfer of technologies in the hands of private companies 276 ) and between certain States and communities situated in other States (for instance, when private companies participate in bilateral development cooperation or run foreign investment projects 277 ) must be accounted for. Benefit-sharing in the triangular relationship between government(s), extractive industries and communities is probably the most controversial and relatively best documented example: significant experience has been accrued on the ground in the mining sector, ranging from insufficient or even abusive arrangements to tackle widespread environmental damage and human rights violations to instances of the genuine transformation of paternalistic arrangements into partnerships. 278 At the international level, international soft-law developments have increasingly spelt out how benefit-sharing may contribute to delineate business responsibility to respect human rights and internationally agreed environmental goals by complementing or supplementing governmental efforts in the context of corporate accountability. 279 The various CBD guidelines that contributed to delineate the evolving notion of benefit-sharing were framed so as to also directly University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 address private companies, 280 and have been increasingly integrated into international standards on corporate environmental accountability. 281 On the other hand, normative developments under international human rights law have also spelt out the role of benefit-sharing in relation to business responsibility to respect the human rights of indigenous peoples to their lands and natural resources. 282 These aimed to complement the due diligence standards of corporate respect for human rights included in the UN Framework on Business and Human Rights 283 -the first intergovernmental endorsement that private companies are to respect internationally recognized human rights by taking adequate measures to prevent, mitigate and remediate adverse human rights impacts over and above what is required of them by national laws, and independently of States' abilities and willingness to fulfill their human rights obligations. The UN Framework did not, however, make reference to the specific challenges faced in ensuring business responsibility for human rights such as those of indigenous peoples that are intrinsically linked to environmental protection. Benefit-sharing has thus contributed to fleshing out the due diligence standards of private companies with respect to indigenous peoples, while also emphasizing the environmental dimension of the business responsibility to respect human rights. 284 That being said, several questions remain to be explored as to the interplay and cross-fertilization between international biodiversity and human rights standards in this regard, particularly in consideration of various ongoing international processes aimed at further defining corporate due diligence, and benefit-sharing in that context, in relation to land and natural resources. 285 Furthermore, a deeper investigation of benefit-sharing in the relations between States, private foreign investors and communities is needed to reconsider the notion of equity that has emerged in international investment law. 286 University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 Finally, a burgeoning transnational practice has emerged on benefit-sharing in connection with the use of 'community protocols.' 287 These are written documents in which indigenous peoples and local communities articulate their values, traditional practices and customary law concerning environmental stewardship, based upon the protection afforded to them by international environmental and human rights law. 288 Crucially, through such an instrument, communities may be able to express their understanding of the most culturally and biologically appropriate form of benefitsharing in a specific context, as a basis for cooperation with governments and private companies, as well as in terms of intra-community benefit-sharing. Community protocols operate through the interaction of international law, national law and the customary law of indigenous peoples and local communities: they serve to promote or facilitate the recognition or integration in statutory law of communities' customary laws and procedures concerning their natural resources and their traditional knowledge, in light of relevant international human rights standards, through a bottom-up process aimed at articulating such laws and procedures in a way that can be more easily understood by national authorities. Critically for present purposes, a study of community protocols can help better understand how benefit-sharing is defined from the bottom up by communities and transnational legal advisors (NGOs and bilateral development partners), and whether and to what extent benefit-sharing operates as a platform for effective partnership-building between communities, governments and the private sector on the ground. 289 In the case of the Nagoya Protocol, community protocols may also help understand how the inter-and intra-State dimensions of benefit-sharing interact with and relate to each other. And in effect these protocols have achieved formal recognition in the Nagoya Protocol. 290 Overall, community protocols can thus be seen as an instrument of 'legal mediation' for communities, but they may also be misused to put 'pressure upon communities to adapt local norms to international standards that may be exogenously interpreted by governments or outsiders.' 291 Promises and risks of community protocols, however, remain to be fully assessed: at the time of writing, literature assessing community protocols is still scant: existing studies are written by practitioners directly involved in the promotion of community protocols in the field and their recognition at the international level. 292 University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 elements of fairness in the dealings of States. ' 296 In first approximation, therefore, the continuous evolution of benefit-sharing appears to prove that intra-generational equity -a relatively recent and still unsettled concept in international law 297 -has been applied outside the limited context of international environmental treaties that explicitly refer to it. 298 Benefit-sharing operationalizes equity as a contextual balancing of interests 299 within the current generation 300 by addressing economic inequalities in ensuring ecological integrity, 301 while taking into account cultural diversity. 302 To that end, benefit-sharing has developed as a principle (thereby providing criteria) or as a mechanism (thereby providing a process) for resolving conflicts of interest and rights contextually and substantively, 303 on the basis of a commitment towards narrowing 'the gap between the haves and havenots.' 304 Intra-generational equity, however, 'to be fair should also integrate an intergenerational equity approach,' 305 and benefit-sharing should thus serve to factor in also the interests of future generations in its pursuance of environmental sustainability. 306 Benefit-sharing, therefore, provides a concrete object for the study of the interplay between inter-and intra-generational equity. 307 While the language of benefits is often used in international law and policy ('to the benefit of', 'maximizing benefits', etc), the legal concept that emerges from the foregoing discussion is distinctive in specifically referring to the fair and equitable sharing of benefits arising from environmental protection, management and regulation, 308 with a view to reconciling competing State and community interests in equitably pursuing environmental sustainability.
What this legal concept denotes is, first, a situation in which different actors or groups of actors stand to benefit and a concerted effort is made in identifying and apportioning benefits through a dialogic process ('sharing'), rather than a unidirectional, likely top-down, flow of benefits. 309 In facing the eternal question of what is and/or who can determine what is 'fair and equitable,' benefit-sharing should be understood as essentially geared towards consensus-building 310 -a process through which a substantive determination of what is fair can be arrived at to satisfy the expectations of those concerned.
Second, the legal concept of benefit-sharing focuses on both economic and noneconomic aspects of equity. This can be understood by returning to the two key rationales underpinning the use of benefit-sharing and the identification of benefits to be shared: the NIEO agenda (with its emphasis on self-determination, need and solidarity) and the notion of ecosystem services (with its emphasis on vulnerability and merit, and on the inseparability of a healthy planet and human well-being in its social, cultural, health and developmental dimensions). 311 The benefits to be shared are thus positive impacts on well-being 312 that take account of the recipient's needs, values, priorities and cultural expectations, and ultimately are able to correspond to 'different understandings of justice.' 313 Against this background, the beneficiaries are primarily 314 developing countries in an inter-State dimension, and indigenous peoples and local communities in developed and developing countries in an intra-State dimension. These beneficiaries contribute to human wellbeing through their environmental practices in ways that are still largely unaccounted at the global and development in the context of globalization and interdependence (eg A/RES/55/12 of 2000 calling for the integrated consideration of trade, finance, investment, technology transfer and developmental issues, and to that end re-emphasizes the urgency of coherent action by the United Nations, the Bretton Woods institutions and the World Trade Organization, as appropriate, along with the action of Governments, to promote equitable and broad sharing in the benefits of globalization, taking into account the specific vulnerabilities, concerns and needs of developing countries' (emphasis added), the phenomenology of benefit-sharing in that connection appears less explicit and is beyond the scope of this article. 309 Therefore going beyond the usual model of natural resource extraction, whereby the initial plans for exploration and extraction of natural resources are developed by the corporation, with some involvement by the State, but little or no involvement of the affected indigenous community, with the result that indigenous peoples are 'at best being offered benefits in the form of jobs or community development projects that typically pale in economic value in comparison to the profits gained by the corporation' (n 193, paras 68, 74 and 76). 310 Former UN Special Rapporteur Anaya referred to benefit-sharing as one of the 'elements of confidence-building conducive to consensus': n 210, para. 53. Generally on the link between fairness in international law and consensus-building, Franck (n 4), at 14-16, and at 437 where it is noted that 'In the discursive search for mutuality, for areas of overlapping self-interest, the elements of fairness can play a role because everyone has an interest in being seen to act fairly'. 311 Note, in this regard, that the 'debate continues as to the appropriate principles to determine equitable allocation: need, capacity, prior entitlement, greatest good to the greatest number, strict equality of treatment': Shelton, (n 2), at 58-59. See also Nollkaemper (n 1), at 265-266. 312 Report on the Right to Enjoy the Benefits of Scientific Progress and its Applications (n 134) para 22; This appears in line with the understanding that equity more generally should correct injustices that lead to catastrophic repercussions for the livelihood and economic well-being of the population of the country concerned: ICJ, Gulf of Main case, [1984] ICJ Rep 246, para 342; UN Charter Article 55(a) and comments by Tourme-Jouannet (n 29), at 9; and Shelton (n 3), at 55. 313 Simm (n 7), at 29-30. 314 While the phenomenology of benefit-sharing predominantly focuses on developing countries and on indigenous peoples and local communities, certain references have also been made to 'stakeholders' more generally (Principles on the ecosystem approach (n 52) para 9).
University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 local level and that are the most exposed to unsustainable and inequitable environmental management decisions and practices from the global to the local level. Accordingly, the range of benefits attached to the legal concept of benefit-sharing ultimately speak to empowerment and partnership on the international plane, as well as on the national and local planes. In other words, benefit-sharing is not just about distribution, but also about participation and recognition of distinct identities and histories and of the need to tackle different forms of domination. That said, similarly to the notion of ecosystem services, 315 the interplay and tensions between economic, socio-cultural and environmental benefits remain unclear and contentious, pointing to the need for further reflection on how to prevent benefit-sharing from being abused or working against its own purposes. The very fact that international instruments on benefit-sharing distinguish between monetary and non-monetary benefits, 316 rather than economic and non-economic ones, seems to reveal an underlying emphasis on economic aspects. 317 Third, the legal concept of benefit-sharing seeks to provide a distinctive starting point 318 for a balancing of interests geared towards providing 'new perspectives and potentially fresh solutions to tricky legal problems.' 319 It tackles eternally controversial questions of access, ownership and/or control of a variety of natural resources (living ones, at the genetic, species and ecosystem level, and non-living ones), and related knowledge (be that 'western' scientific knowledge or traditional knowledge) by framing them as the opportunity to identify and allocate positive implications deriving from the conservation and sustainable use of natural resources (the benefits 'arising from'). These are the local and global benefits that derive from allowing access to resources, such as access to genetic resources for scientific research or commercial innovation purposes, or access to natural resources for sustainable development or equitable conservation purposes. Or benefits that derive at the local and global level from the sustainable and equitable use of shared resources, such as the ecosystem and human heath benefits arising from the sustainable and equitable use of shared watercourses. In doing so, benefit-sharing seeks to bring about a new understanding of the advantages that different stakeholders draw from different forms of cooperation related to the environment and of the possible options for structuring such cooperation as a global partnership. This approach remains to be studied in the context of legal scholarly debates on common goods 320 and global public goods, 321 and University of Edinburgh School of Law Research Paper 2014/41 BENELEX Working Paper N. 1 distinctions may need to be drawn between conservation and sustainable use purposes, exhaustible and non-exhaustible resources, and rivalrous and non-rivalrous uses.
In conclusion, benefit-sharing has emerged as a legal concept of its own right in international law that is meant to realize equity in the relations among and within States. It is so flexible that it can fit within significantly different international legal approaches concerned, for different purposes, with natural resources, and that it can cross and connect different levels of regulation. But admittedly this initial conceptual sketch raises more questions that answers: benefit-sharing needs to be further studied in its interactions with self-determination, solidarity and consent between and within States, with a view to contributing to the well-established scholarly debates on the progressive transformation of national sovereignty and on the linkages between human rights and the environment, including in relation to business responsibility to respect human rights.
This is particularly urgent as empirical research in other disciplines reveals that benefit-sharing may in practice be a 'disingenuous win-win rhetoric', a 'Trojan horse of initial promises and later loss of control legitimized by narrative framings of the global public good': 322 it may help avoid 'more fundamental negotiations over access which is the real justice requirement' and exercises power through framing, by imposing a dominating knowledge approach on the less powerful. 323 These grave concerns have been raised in the absence of a reflection on the opportunities and limitations of international law to prevent, address and remedy the injustices that may be brought about in the name of benefit-sharing and on the role of international law in progressively realizing equity through that concept. This gap needs to be filled: 324 benefit-sharing as an international legal concept requires further theoretical and empirical investigation to fully evaluate, from a normative perspective, its worth in ensuring mutual supportiveness in the making and interpretation of international law 325 facing the interconnected and multi-scalar climate, energy, biodiversity, water and food crises.  325 The emerging international legal principle of mutual supportiveness requires, at the interpretative level, that States disqualify solutions to tensions between competing regimes involving the subordination of one regime to the other; and, at the law-making level, that States exert good-faith efforts to negotiate and conclude instruments that clarify the relationship between competing regimes, when interpretative reconciliation efforts have been exhausted: Pavoni (n 254) at 661-669.